49 C.F.R. PART 201—FORMAL RULES OF PRACTICE FOR PASSENGER SERVICE
Title 49 - Transportation
Authority: Secs. 402(f) and (h) of Pub. L. 91–518, 84 Stat. 1327, as amended by sec. 10(2) of Pub. L. 93–146, 87 Stat. 548 and sec. 216 of Pub. L 96–254, 94 Stat. 418 (45 U.S.C. 562 (f) and (h)); sec. 1.49 of Title 49, Code of Federal Regulations.
Source: 46 FR 2614, Jan. 12, 1981, unless otherwise noted.
This part prescribes procedures under which applications will be received and heard and by which rules and orders will be issued under subsections 402(f) and (h) of the Rail Passenger Service Act (45 U.S.C. 562 (f) and (h)). (a) The definitions set forth in §200.3 shall apply to this part. (b) The following definitions shall also apply to this part: (1) Party means— (i) The Administrator or his representative; or (ii) A person who has notified the Administrator by specified dates of his or her intent to participate in the hearing pursuant to §§201.7 and 201.16(b). (2) Witness means any person who submits written direct testimony on an application to the Secretary under this part. A person may be both a party and a witness. The procedural regulations in this part govern the practice and procedure in hearings held under subsections 402(f) and (h) of the Act. These hearings will be governed by the provisions of 5 U.S.C. 556 and 557 of the Administrative Procedure Act. The regulations shall be construed to secure the just, speedy, and inexpensive determination of all issues raised with respect to any proposal to increase speeds or to add trains pursuant to subsections 402(f) and (h) of the Act with full protection for the rights of all persons affected thereby. (a) Each application and objection under this part shall be submitted in writing to: Docket Clerk, Office of the Chief Counsel, Federal Railroad Administration, 400 7th Street, SW., Washington, DC 20590. (b) Any procedural issues arising from the submission or consideration of applications under this part, such as timeliness and adequacy, shall be heard and decided by the presiding officer appointed under §201.8. (c) In accordance with subsection 402(f) of the Act, Amtrak may apply to the Administrator for an order requiring a railroad to permit accelerated speeds by Amtrak trains. Each application shall: (1) List by endpoints the routes for which Amtrak desires such acceleration; (2) Not list routes of more than one railroad; (3) Indicate by route and train the maximum speeds for Amtrak trains permitted by the railroad and the maximum speeds desired by Amtrak; (4) Indicate for each route listed the track classification as specified in FRA track safety standards (49 CFR part 213); and (5) Explain why the maximum speeds Amtrak desires are safe and practicable, or what track, signal system, or other facility improvements would make such speeds safe and practicable. (d) In accordance with subsection 402(h) of the Act, Amtrak may apply to the Administrator for an order to require a railroad to permit or provide the operation of additional passenger trains on its rail lines. Each application shall: (1) List the railroad, the endpoints of the proposed additional train or trains, and the proposed schedule for such additional train or trains, and (2) Describe and give the background of all prior efforts and negotiations to obtain a satisfactory voluntary agreement with the railroad for the operation of the proposed additional train or trains. (e) In addition to the data provided with their applications, applicants shall furnish the Administrator with any other information that the Administrator finds necessary in order to make the determinations required by the Act. (f) Each applicant shall promptly notify, by registered or certified mail, any party affected by any application, whether Amtrak or a railroad, of the submission of each application under this part, and shall provide a copy of the application with such notice. An official U. S. Postal Service return receipt from the registered or certified mailing constitutes prima facie evidence of notice. (a) A notice of hearing on an application shall be published in the (b) The notice shall state: (1) The nature of the hearing; (2) The place and date of the hearing. The date shall not be less than 60 days after publication of notice of the hearing; (3) The legal authority under which the hearing is to be held; (4) Issues of fact which may be involved in the hearing; (5) If a draft Environmental Impact Statement is required, the date of publication of the draft and the place(s) where the draft and comments thereon may be viewed and copied; (6) The place(s) where records and submitted direct testimony will be kept for public inspection; (7) The final date for filing a notice of intent to participate in the hearing; (8) The final date for submission of direct testimony on the application, and the number of copies required; (9) The docket number assigned to the case, which shall be used in all subsequent proceedings; and (10) The place and date of the prehearing conference. Any person desiring to participate as a party shall notify the Administrator, by registered or certified mail, on or before the date specified in the notice. (a) Upon publication of the notice of hearing pursuant to §201.6, the Administrator shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of interest, financial or otherwise, shall serve as presiding officer in such proceeding. (b) The presiding officer, in any proceeding under this part, shall have power to: (1) Change the time and place of the hearing and adjourn the hearing; (2) Evaluate direct testimony submitted pursuant to these regulations, make a preliminary determination of the issues, conduct a prehearing conference to determine the issues for the hearing agenda, and cause to be published in the (3) Rule upon motions, requests, and admissibility of direct testimony; (4) Administer oaths and affirmations, question witnesses, and direct witnesses to testify; (5) Modify or waive any rule (after notice) upon determining that no party will be prejudiced; (6) Receive written comments and hear oral agruments; (7) Render a recommended decision; and (8) Do all acts and take all measures, including regulation of media coverage, for the maintenance of order at and the efficient conduct of the proceeding. (c) In case of the absence of the original presiding officer or his inability to act, the Administrator may assign to a successor the powers and duties of the original presiding officer without abatement of the proceeding unless otherwise ordered by the Administrator. (d) The presiding officer may upon his own motion withdraw as presiding officer in a proceeding if he deems himself to be disqualified. (e) A presiding officer may be requested to withdraw at any time prior to the recommended decision. Upon the filing by an interested person in good faith of a timely and sufficient affidavit alleging the presiding officer's personal bias, malice, conflict of interest, or other basis which might result in prejudice to a party, the hearing shall recess. The Administrator shall immediately act upon such allegation as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as he may deem appropriate in the circumstances. (a) Unless otherwise specified, all direct testimony, including accompanying exhibits, shall be submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing, the final hearing agenda, or within 15 days after the conclusion of the prehearing conference, as the case may be. All direct testimony shall be in affidavit form, and exhibits constituting part of such testimony, referred to in the affidavit and made a part thereof, shall be attached to the affidavit. Direct testimony submitted with exhibits shall state the issue to which the exhibit relates; if no such statement is made, the presiding officer shall determine the relevance of the exhibit to the issues published in the (b) The direct testimony submitted shall contain: (1) A concise statement of the witness' interest in the proceeding and his position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the witness shall state his relationship to the party; (2) Facts that are relevant and material; and (3) Any proposed issues of fact not stated in the notice of the hearing and the reason(s) why such issues should be considered at the hearing. (c) Ten copies of all direct testimony shall be submitted unless the notice of the hearing specifies otherwise. (d) Upon receipt, direct testimony shall be assigned a number and stamped with that number and the docket number. (e) Contemporaneous with the publication of the notice of hearing, Amtrak's direct testimony in support of its application shall be available for public inspection as specified in the notice of hearing. Amtrak may submit additional direct testimony during the time periods allowed for submission of such testimony by witnesses. Unless otherwise specified in the notice of hearing, all direct testimony shall be addressed to the Docket Clerk, Office of the Chief Counsel, Federal Railroad Administration, 400 7th Street, SW., Washington, DC 20590. All affidavits and exhibits shall be clearly marked with the docket number of the proceeding. (a) If confidential financial information is not involved, any document in a file pertaining to any hearing authorized by this part or any document forming part of the record of such a hearing may be inspected or copied in the Office of the Chief Counsel, Federal Railroad Administration, 400 7th Street, SW., Washington, DC 20590, unless the file is in the care and custody of the presiding officer in which case he shall notify the parties as to where and when the record may be inspected. (b) If confidential financial information is involved, the presiding officer, at his discretion, upon the request of any party, may deny the public inspection and copying of such information. (a) After notice of a hearing is published in the (b) The presiding officer shall not consult any person or party on any fact in issue or on the merits of the matter unless notice and opportunity is given for all parties to participate. (a) After an examination of all the direct testimony submitted, the presiding officer shall make a preliminary determination of issues of fact to be addressed at the hearing. (b) The presiding officer's preliminary determination shall be made available at the place or places provided in the notice of the hearing at least five days before the prehearing conference is held. (c) The purpose of the prehearing conference shall be to enable the presiding officer to determine, on the basis of the direct testimony submitted and prehearing discussions: (1) Whether the presiding officer's preliminary determination of issues of fact for the hearing has omitted or misconstrued any significant issues, and (2) The nature of the interest of each party and which parties' interests are adverse. (d) Only parties may participate in the prehearing conference. A party may appear in person or be represented by counsel. (e) Parties who do not appear at the prehearing conference shall be bound by the conference's determinations. (a) After the prehearing conference, the presiding officer shall prepare a final agenda which shall be published in the (b) The final agenda shall list: (1) All the issues the hearing shall address, the order in which those issues shall be presented, and the direct testimony submitted on those issues; and (2) A final date for submission of direct testimony on issues of fact not included in the notice of hearing if such issues are presented. The final agenda may also specify a final date for submission of direct testimony to rebut testimony previously submitted during the time specified in the notice of the hearing. (c) The presiding officer shall publish with the final agenda a list of witnesses who may appear at the hearing, a list of parties, the nature of the interest of each party, and which parties' interests are adverse on the issues presented. (a) If the presiding officer concludes that no issues of fact are presented by the direct testimony submitted, he shall publish such conclusion in the (b) A person need not be a party to submit written comments. (c) Promptly after expiration of the period for receiving written comments, the presiding officer shall make a recommended decision based on the record, which in this case shall consist of the testimony, exhibits, and written comments submitted. He shall transfer to the Administrator his recommended decision, the record, and a certificate stating that the record contains all the written direct testimony and comments submitted. The Administrator shall then make a final decision in accordance with these regulations. (a) Direct testimony to rebut testimony offered during the time period specified in the notice of hearing may be submitted pursuant to these regulations within fifteen days after the conclusion of the prehearing conference unless the presiding officer otherwise specifies in the final agenda. (b) If the final agenda presents issues not included in the notice of the hearing published pursuant to §201.6, (1) Any person interested in participating at the hearing on such issues presented shall notify the Administrator by certified mail of an intent to participate not later than ten days after publication of the final agenda. Such person may present direct testimony or cross-examine witnesses only on such issues presented unless he previously notified the Administrator pursuant to §201.7, and (2) Additional written direct testimony concerning such issues may be submitted within the time provided in the final agenda. Such direct testimony will comply with the requirements of §201.9. Persons who fail to notify the Administrator pursuant to §§201.7 and 201.16 shall be deemed to have waived their right to participate as parties in any part of the hearing. (a) The hearing shall be held at the time and place fixed in the notice of hearing, unless the presiding officer changes the time or place. If a change occurs, the presiding officer shall publish the change in the (b) The presiding officer shall, at the commencement of the hearing, introduce into the record. The notice of hearing as published in the (c) The hearing shall be publicly conducted and reported verbatim by an offical reporter. (d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of the presiding officer during the hearing, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the presiding officer. The ruling of the presiding officer on any objection shall be a part of the transcript and shall be subject to review at the same time and in the same manner as the Administrator's final decision. Only objections made before the presiding officer may subsequently be relied upon in the proceedings. (e) All motions and requests shall be addressed to, and ruled on by, the presiding officer if made prior to his certification of the transcript, or by the Administrator if made thereafter. (a) Direct testimony shall be submitted by affidavit as provided in these regulations and introduced at the hearing by a witness in order to be considered part of the record. Such direct testimony shall not be read into evidence but shall become a part of the record subject to exclusion of irrelevant and immaterial parts thereof. (b) The witness introducing direct testimony shall: (1) State his name, address, and occupation; (2) State his qualifications for introducing the direct testimony. If an expert, the witness shall briefly state the scientific or technical training that qualifies him as an expert; (3) Identify the direct testimony previously submitted in accordance with these regulations; and (4) Submit to appropriate direct and cross examination. Cross-examination shall be by a party whose interests are adverse to those of the witness on the issue presented if the witness is a party, or adverse to the interests of the party who presented the witness if the witness is not a party. (c) A party shall be deemed to have waived the right to introduce direct testimony if such party fails to present a witness to introduce the direct testimony. (d) Offical notice may be taken of such matters as are judicially noticed by the courts of the United States, provided, that parties shall be given adequate notice by the presiding officer at the hearing of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed. (a) The presiding officer may: (1) Require the cross-examiner to outline the intended scope of the cross-examination; (2) Prohibit parties from cross-examining witnesses unless the presiding officer has determined that the cross-examiner has an adverse interest on the facts at issue to the party-witness. For the purposes of this subsection, the Administrator's or his representative's interest shall be considered adverse to all parties; (3) Limit the number of times any party or parties having a common interest may cross-examine an “adverse” witness on the same matter; and (4) Exclude cross-examination questions that are immaterial, irrelevant, or unduly repetitious. (b) Any party shall be given an opportunity to appear, either in person or through an authorized counsel or representative, to cross-examine witnesses. Before cross-examining a witness, the party or counsel shall state his name, address, and occupation. If counsel cross-examines the witness, counsel shall state for the record the authority to act as counsel. Cross-examiners shall be assumed to be familiar with the direct testimony. (c) Any party or party's counsel who fails to appear at the hearing to cross-examine an “adverse” witness shall be deemed to have waived the right to cross-examine that witness. (d) Scientific, technical, or commercial publications may be used only for the limited purpose of impeaching witnesses under cross-examination unless previously submitted and introduced in accordance with these regulations. (a) The presiding officer may, in his discretion, provide for oral argument at the end of the hearing. Such argument, when permitted, may be limited by the presiding officer to the extent necessary for the expeditious disposition of the proceeding. (b) The presiding officer shall announce at the hearing a reasonable period of time within which any interested person may file with the presiding officer any written comments on the application, including proposed findings and conclusions or written arguments or brief based upon the record, citing where practicable the relevant page or pages of the transcript. If a party filing a brief desires the presiding officer to reconsider any objection made by such party to a ruling of the presiding officer, he shall specifically identify such rulings by reference to the pertinent pages of the transcript and shall state his arguments thereon as a part of the brief. (c) Oral or written arguments shall be limited to issues arising from direct testimony on the record. (a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall make a recommended decision based on the record and transmit the decision to the Administrator. The recommended decision shall include: (1) A statement containing a description of the history of the proceedings; (2) Findings on issues of fact with the reasons therefor; and (3) Rulings on issues of law. (b) The presiding officer shall also transmit to the Administrator the transcript of the hearing, the original and all copies of the direct testimony, and written comments. The presiding officer shall attach to the original transcript of the hearing a certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as are specified. (c) Immediately after receipt of the recommended decision, the Administrator shall give notice thereof in the (d) Within twenty days after the notice of receipt of the recommended decision has been published in the (a) Upon receipt of the recommended decision and transcript and after the twenty-day period for receiving written comments on the recommended decision has passed, the Administrator's decision may affirm, modify, or set aside, in whole or in part, the recommended findings, conclusions, and decision of the presiding officer. The Administrator may also remand the hearing record to the presiding officer for a fuller development of the record. (b) The Administrator's decision shall include: (1) A statement containing a description of the history of the proceeding; (2) Findings on issues of fact with the reasons therefor; and (3) Rulings on issues of law. (c) The Administrator's decision shall be published in the
Title 49: Transportation
PART 201—FORMAL RULES OF PRACTICE FOR PASSENGER SERVICE
Section Contents
§ 201.1 General.
§ 201.3 Definitions.
§ 201.4 Scope of regulations.
§ 201.5 Applications.
§ 201.6 Notice of hearing.
§ 201.7 Notification by interested persons.
§ 201.8 Presiding officer.
§ 201.9 Direct testimony submitted as written documents.
§ 201.10 Mailing address.
§ 201.11 Inspection and copying of documents.
§ 201.12 Ex parte communications.
§ 201.13 Prehearing conference.
§ 201.14 Final agenda of the hearing.
§ 201.15 Determination to cancel the hearing.
§ 201.16 Rebuttal testimony and new issues of fact in final agenda.
§ 201.17 Waiver of right to participate.
§ 201.18 Conduct of the hearing.
§ 201.19 Direct testimony.
§ 201.20 Cross-examination.
§ 201.21 Oral and written arguments.
§ 201.22 Recommended decision, certification of the transcript, and submission of comments on the recommended decision.
§ 201.23 Administrator's decision.
§ 201.1 General.
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§ 201.3 Definitions.
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§ 201.4 Scope of regulations.
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§ 201.5 Applications.
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§ 201.6 Notice of hearing.
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§ 201.7 Notification by interested persons.
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§ 201.8 Presiding officer.
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§ 201.9 Direct testimony submitted as written documents.
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§ 201.10 Mailing address.
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§ 201.11 Inspection and copying of documents.
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§ 201.12 Ex parte communications.
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§ 201.13 Prehearing conference.
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§ 201.14 Final agenda of the hearing.
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§ 201.15 Determination to cancel the hearing.
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§ 201.16 Rebuttal testimony and new issues of fact in final agenda.
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§ 201.17 Waiver of right to participate.
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§ 201.18 Conduct of the hearing.
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§ 201.19 Direct testimony.
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§ 201.20 Cross-examination.
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§ 201.21 Oral and written arguments.
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§ 201.22 Recommended decision, certification of the transcript, and submission of comments on the recommended decision.
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§ 201.23 Administrator's decision.
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